The Communications Liberty and Innovation Project (CLIP) recently filed comments at the Federal Communications Commission (FCC) opposing an interoperability mandate in the 700 MHz band. CLIP argued that the proposed interoperability mandate would be manifestly unjust. The Supreme Court’s holding in the healthcare opinion issued last week indicates that the mandate could be more than merely unjust: it might be unconstitutional.

In National Federation of Independent Business v. Sebelius, the Court upheld the constitutionality of the “individual mandate” in the Affordable Care Act, but only as a tax, not as a regulation. The individual mandate requires individuals to buy a health insurance policy from a third-party. Those who do not comply must submit a “shared responsibility” payment to the federal government with their taxes. The individual mandate in intended to force healthy individuals – whose premiums on average are higher than their health care expenses – into the insurance risk pool, which allows insurers to subsidize the costs of covering the unhealthy individuals that the new law requires insurers to accept.

The Court held that Congress lacked the authority to impose the individual mandate under the Commerce Clause, which is applicable only to the regulation of existing commercial activity. According to the Court, “Construing the Commerce Clause to permit Congress to regulate individuals preciselybecause they are doing nothing would open a new and potentially vast domain to congressional authority.”

The Court rejected the government’s argument that it could enact the individual mandate under the Necessary and Proper Clause. The government claimed that the mandate is an “integral part of a comprehensive scheme of economic regulation,” i.e., a scheme that “requires regulation of inactivity to be effective.” The Court noted that the Necessary and Proper Clause is not an independent source of substantive power beyond those specifically enumerated in the Constitution, and cannot be used to create the necessary predicate to the exercise of an enumerated power (in this case, the Commerce Clause).

The interoperability mandate proposed by the FCC shares the characteristics of the individual mandate that the Court considered constitutionally objectionable. The FCC has proposed forcing AT&T (and similarly situated licensees) to buy equipment that operates on the 700 MHz A Block spectrum, which AT&T cannot legally use, in order to subsidize the costs of AT&T competitors, who are licensed to use that spectrum. That sounds remarkably similar to forcing healthy individuals to buy health insurance in order to subsidize the cost of insurance for the unhealthy.

Although they appear similar, there are several reasons why the proposed interoperability mandate would impose even greater restraints on liberty than the individual mandate, and is thus likely to be considered unconstitutional under the Commerce Clause.

First, the individuals who buy health insurance under the ACA are legally allowed to use the insurance for its intended purpose (for routine checkups, at the very least). The FCC is proposing to simultaneously compel AT&T to buy A Block equipment and prohibit AT&T from using that equipment for its intended purpose – i.e., to transmit and receive signals on the A Block spectrum – because AT&T doesn’t hold any A Block licenses. If an interoperability mandate were imposed on AT&T, it would get no benefit at all. The only beneficiaries of the mandate would be AT&T’s competitors, who might be able to buy A Block equipment for their own use at lower prices.

Second, the individual mandate imposes no costs on currently uninsured individuals beyond the cost of their health insurance or, in the alternative, the shared responsibility tax. The proposed interoperability mandate would impose costs on AT&T that go well beyond the costs of A Block equipment by causing harmful interference to its 700 MHz network. That’s like forcing people to buy health insurance that makes them sick.

It is also why AT&T elected to refrain from buying any A Block spectrum in the first place. For example, a system that uses only the B Block can avoid the harmful interference that afflicts the A Block. But, if the system is also capable of operating on the A Block, the B Block suffers harmful interference as well. Like the queen’s apple in Snow White, one bite of the A Block is enough to poison the whole system.

As a result, AT&T would suffer harm to its competitive position and, more importantly, millions of consumers who use AT&T’s new LTE network would receive poorer service.

Third, unlike the individual mandate, the interoperability mandate isn’t necessary to effectuate the regulatory scheme. FCC auctions are designed to determine the appropriate market price of the spectrum for sale. In the 700 MHz auction, the auction determined that the A Block was worth $3.96 billion, and the B Block was worth $9.1 billion. Bidders who won spectrum in the B Block thus paid $5.1 billion more for their spectrum in the aggregate than bidders who won spectrum in the A Block. This massive difference in market value reflects the potential for harmful interference that plagues the A Block. The issues the FCC would attempt to address with an interoperability mandate were thus built into the A Block’s steeply discounted price.

It is like buying a synthetic suit for less than half the price of a wool suit and complaining to the manager about the fabric quality. The manager might offer to swap a wool suit for the synthetic, if the customer were willing to pay the difference in price. The manager might even be willing to offer a discount on the wool suit to keep the customer happy. The manager would not, however, try to make another customer pay for the swap, especially when the other customer already paid full price for a wool suit.

Yet, that is in essence what the FCC has proposed to do in the 700 MHz band. The interoperability mandate would allow A Block licensees to keep their $5.1 billion interference discount while compelling their rivals, who paid full price for their spectrum, to pay the costs of that interference. That isn’t a legitimate regulatory goal, let alone necessary or proper to implement any enumerated constitutional power, and I doubt such a mandate could survive judicial review.

The FCC could argue that 700 MHz licensees “as a class are active in the market” for the provision of mobile service, and that an interoperability mandate would merely regulate how this class of licensees conducts that activity rather than compel them to engage in it.

The government made a similar argument in support of the individual mandate. According to the government, uninsured individuals are active in the market for health care, which they regularly obtain, and the individual mandate merely regulates that activity by requiring them to pay for healthcare through a third-party insurer rather than pay for it themselves (“self-insurance”). The Court held that belonging to a class that is active in the market is of no constitutional significance when the government attempts to compel one portion of the class to act in order to subsidize another. “If the individual mandate is targeted at a class, it is a class whose commercial inactivity rather than activity is its defining feature.”

The same is true for 700 MHz licensees whose defining feature is their decision not to deploy equipment capable of operating on the A Block or buy any A Block licenses. Like healthy people who have other priorities for their money, 700 MHz licensees have chosen to refrain from deploying A Block equipment to avoid harmful radiofrequency interference, which is precisely the reason the FCC is considering the interoperability mandate. If the bidders who won B Block licenses in the 700 MHz auction had known they would be required to operate on A Block spectrum as well, they may have chosen not to participate in the auction at all, and they almost certainly would not have paid the government an additional $5.1 billion to avoid the A Block.

Bidders who chose not to buy a spectrum license in the A Block had every reason to believe they would not be compelled to provide equipment in that Block. As noted above, the Communications Act prohibits mobile providers from using spectrum in the A Block without a license. And, to compensate for the inherent differences among spectrum bocks in the 700 MH band, the FCC expressly permits “licensees to make determinations respecting the services provided and technologies to be used . . . so long as those services comply with [its] technical rules.” (PDF)

Finally, because Congress has not delegated general taxing authority to the FCC, the interoperability mandate cannot be considered a tax. For the FCC, the unconstitutionality of a regulatory mandate under the Commerce Clause is fatal.

This does not mean the FCC should do nothing. It has authority to solve the A Block interference issues using its spectrum management authority, and CLIP believes the FCC should solve them. But, whatever the solution is, it should not include an interoperability mandate that distributes the costs of the interference by making them worse.